The law according to Midd. Planning & Zoning

If you were paying attention in social studies class, you learned that it was those now-dead white guys in western Europe who changed the ideal in governance from the capricious rule of chiefs, kings and queens to the rule of elected leaders. The minor French nobleman Charles Montesquieu is noted for his 1748 comments: A government of laws and not of men. But a Wikipedia entry claims it was an untitled Englishman, Samuel Rutherford, who beat Montesquieu to the same conclusion in 1644. The concept hasnt done well in planning and zoning circles, not only in Europe where it originated but in the U.S. either, because P&Z folks have historically preferred to use their own, presumably superior, judgment on a case-by-case basis rather than operate in a more constrained fashion under a set of quantifiable rules properly approved by those affected. Case in point: the French Baron Georges Eugene Von Haussman, the Napoleonic appointee who is described by urban-planning scholar Joel Kotkin as ruthless in his demolition of other Parisians housing and shops to create his own vision of boulevards, parks, circles, and squares. A half-century later, U.S. Supreme Court jurist Oliver Wendell Holmes put a legal stamp of approval for similar carte-blanche autocracy in American planning circles; his opinion stated that newly-restrictive zoning doesnt constitute a Fifth Amendment compensable-to-landowners taking unless it goes too far (Pennsylvania Coal v. Mahon, 1922). Hows that for a flexible measuring-stick? When I was a planner in the early 1960s, engaged in such efforts as the Rutland City and Barre City and Town plans, we had a far more limited view of our authority; we were careful to draft regulatory proposals which were measurable by both the regulators. The regulated building setback requirements were phrased in terms of tape-measure feet rather than in view of appropriateness-for-the-neighborhood. Those philosophies have not survived well into more contemporary planning doctrine; this change is best seen on Act 250s irreplaceable natural resources and the appropriateness and compatibility described in Act 200. Most Vermont towns (Middlebury is among them) have greatly enlarged their exercise of conditional use and similar zoning devices, thus enabling the P&Z officials to issue or deny permits with or without unique and unpublished added requirements. Their undemocratic, even dictatorial powers have grown so that they now determine how many supermarkets, gas stations, or motels, their community needs. There is no mention of market forces, competition or consumer-choice in the P&Z lexicon. Middlebury P&Z officials are proposing constraints on development based on solar access. This is not a new idea: California did so in the 1970s after the first energy crisis. As sunlight becomes a more valuable asset, the prevention of neighbor-shading becomes as legitimate a zoning objective, as, say, building height or footprint limitations. But that was the 1970s, when even California saw fit to structure its solar-access regulations in quantitative terms linear and square feetpredictable, comprehensible, objective (not subjective) and checkable by both the P&Z folks and their land-owner clients. Middleburys solar-access proposal is filled with modern, flexibly-interpretable plannerspeak. Heres an example from a recent local news story: the development review board will consider whether the project will appropriately incorporate the principles of energy conservation and the best available technology that is practicable for efficient use and recovery of energy. Such language is certainly in exalted intellectual company with such adverbs and adjectives as appropriately and practicableyes, but in whose opinion? Its not unlike Justice Holmes off-hand dismissal of Fifth Amendment problems in takings-via-zoning (recently rejected, remarkably, in Washington states new Proposition 37) as being ok as long as it doesnt go too far. Again, in whose enlightened opinion?